Schwartz v. Hall Insurance Group: A Prerecorded "Please Hold" Greeting Is Still a Prerecorded Call

The Setup

The plaintiff, representing himself, said a Medicare insurance agency called his cell phone twice and texted once in June 2022, even though his number was on the National Do Not Call Registry. He said he wasn't eligible for Medicare and never asked to hear from the company.

The company said it bought several thousand leads from a lead seller, and one lead had the plaintiff's number tied to a submission on a Medicare website with a consent disclaimer. Its dialing system, it said, only dials numbers entered manually. Answered calls opened with a recorded greeting in a company representative's own voice, asking the listener to hold for someone from the company.

The company moved for summary judgment.

Autodialer: Company Wins

Under Facebook v. Duguid, an automatic telephone dialing system must be able to store or produce numbers using a random or sequential number generator. The company's sworn statement said its system can't. The plaintiff pointed to a product video online and the company's discovery responses, but the video was unauthenticated hearsay, and he never followed up after the company objected to his document request. The autodialer theory failed.

The Greeting: Plaintiff Survives

The company argued a greeting that merely introduces a live conversation isn't really a "call." The court wasn't buying it. Section 227(b)(1)(A) bans "any call" to a cell phone using a prerecorded voice, with no carve-out based on what the message says. The "to deliver a message" language the company leaned on comes from the residential-line provision, Section 227(b)(1)(B), which Congress wrote differently. Different words, different meaning.

The court added that a recorded greeting still keeps you from interrupting or talking to a person while it plays, which is exactly the nuisance Congress targeted. The company offered no case law for its position.

Consent: A Real Fight

The company bears the burden on consent. The plaintiff denied submitting anything and said if someone used his information, that was identity fraud. The company admitted it had no evidence the plaintiff was the person who filled in the form. Its "good faith" reliance on the lead seller didn't help: the TCPA is essentially strict liability, and while consent can come through an intermediary under Baisden v. Credit Adjustments, the caller remains on the hook if the intermediary is wrong.

The plaintiff's argument that the company wasn't on the website's partner list didn't get considered, since his screenshot was unauthenticated and dated more than a year later.

With consent disputed, the willful or knowing claim survived too. So did the Ohio state law claims, because the company didn't show its contacts weren't telephone solicitations.

Why It Matters

• "Please hold" recordings count. If a recorded voice plays on a cell phone call, you need consent, whatever the recording says.
• Buying leads doesn't buy consent. If the lead is wrong, the caller wears it.
• Evidence still matters for plaintiffs. Product videos and screenshots need authentication, which is why the autodialer claim died.

Read the Southern District of Ohio order.